2004 (4) TMI 377 - AT - Central Excise

Appellate Tribunal allows appeal on distributor pricing for aerated drinks, finding no duty short-levy

The Appellate Tribunal CESTAT, New Delhi allowed the appeals against the rejection of the appellant-manufacturer's sale price to distributors for aerated ... Valuation Issues: Central excise valuation of aerated drinks, rejection of sale price to distributors, imposition of penalties, comparison of sale price with competing brands, assessable value determination, short-levy of duty.The judgment by the Appellate Tribunal CESTAT, New Delhi involved appeals against a common order of adjudication regarding the central excise valuation of aerated drinks, specifically Thums Up/Coca Cola manufactured by M/s. Narmada Drinks (P) Ltd. The goods were under provisional assessment from 1-4-94, with a higher assessable value fixed from 1-4-94 to August 1997, leading to a demand for over Rs. 12 lakhs in differential duty and imposition of penalties on the appellants. The dispute primarily revolved around the rejection of the appellant-manufacturer's sale price to their distributors, considering them as dummies, and calculating a fresh assessable value by allowing deductions from the invoice price of the dealers, namely M/s. Bilaspur Agency and M/s. Chattisgarh Agency. The Commissioner found these distributors to be dummies due to their lack of financial capabilities and their association with M/s. Narmada Drinks (P) Ltd. The appellants argued that the distributors were genuine, and the findings lacked a basis, emphasizing the existence of other independent buyers at the same price level. They also contended that if all permissible post-manufacturing expenses were allowed, the assessable value would have been reasonable and correct.The appellants further argued that a comparison of their sale price with competing brands like Dukes and Pepsi would demonstrate the commercial nature of their pricing. They provided details of sale tax assessments for M/s. Chattisgarh Agency, banking details of both agencies, and registration under shop and establishment laws to support their case. During the hearing, it was highlighted that these documents had been verified by the Superintendent of Central Excise at Bilaspur. The Tribunal examined the records and submissions from both sides, noting that the appellants had multiple buyers besides the so-called sole distributors. Sales data revealed that sales to sole distributors accounted for only a small percentage, with the majority of sales made to other parties. Banking transactions of the distributors also indicated regular high-value dealings. The Tribunal emphasized that if a normal price was available on an ex-factory basis, it should constitute the assessable value for all goods produced and removed by a manufacturer. In this case, the presence of sales to independent buyers at the same price rendered the issue of sales to sole distributors irrelevant for determining the assessable value. The Tribunal concluded that the finding of short-levy of duty was unjustified, leading to the setting aside of the impugned order and allowing the appeals with consequential relief to the appellants.In conclusion, the judgment addressed the complexities surrounding the central excise valuation of aerated drinks, the rejection of sale prices to distributors, the imposition of penalties, the comparison of sale prices with competing brands, the determination of assessable value, and the issue of short-levy of duty. The Tribunal's detailed analysis and findings underscored the importance of considering all relevant factors, including the presence of multiple buyers, in determining the assessable value and highlighted the need for a commercial perspective in such valuation disputes.